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July 21, 2011

Judge Chin Wants Action on Failed Google Book Settlement

If you thought that Judge Denny Chin's denial of the Google Book Settlement last March was the end of that story, you were wrong. In the absence of a settlement agreement, the 2005 lawsuit brought by the Authors Guild and various publishers against Google for copyright infringement, due to Google's scanning of in-copyright books, must proceed. Currently, the parties to the lawsuit are trying to craft a new settlement.

Judge Chin is getting impatient with the pace of the discussions, though, and at a status conference on Tuesday, he basically told the parties to get off the stick or else proceed with litigation. The next status conference is set for September 15.

What's really interesting is that it now appears that the parties are discussing an opt-in agreement--where Google would have to seek authors' permission before scanning in-copyright works and placing them in its vast book database--rather than the original opt-out agreement--where Google scanned without permission, and works were automatically included in the database unless authors directed Google to remove them. The opt-out provision drew much criticism, since it reverses a basic tenet of copyright law; it was one of Judge Chin's major reasons for rejecting the Settlement.

It's hard to see how a full-on opt-in agreement would be attractive to Google. Its vision is to create a universal digital library which will include all the books in the world; an opt-in agreement could sharply limit that, forcing it to invest enormous time and effort in contacting authors, and prevent it from including large numbers of works for which it couldn't locate copyright holders.

Will Google agree to an opt-in settlement? If the parties come up with one, will it really be opt-in (for instance, will Google be allowed to go on scanning books and databasing them, as long as it only displays snippets of text--which is the arrangement it has come to with some European countries, but exactly the issue that spurred the original lawsuit)? If there's no agreement, will Google decide to take its chances in court? Stay tuned.

At a brief status conference yesterday morning before Judge Denny Chin, the parties to our copyright infringement lawsuit against Google requested additional time to explore a revised settlement. Judge Chin set the next status conference for September 15, but urged the parties to move quickly with their discussions, saying that he was inclined to put the litigation on a tight discovery deadline if a settlement isn't reached by then.

On March 22nd, Judge Chin rejected a proposed settlement of the litigation, saying that "many of the concerns raised in the objections would be ameliorated if the ASA [the Amended Settlement Agreement] were converted from an 'opt-out' settlement to an 'opt-in' settlement. I urge the parties to consider revising the ASA accordingly." (Judge Chin's March 22nd opinion is available here.)

Since that ruling, the parties have been in discussions about an opt-in settlement to the dispute.

Yesterday's status conference was the second since Judge Chin rejected the proposed settlement.

21 comments
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The issue of what constitutes a 'good faith' effort to identify copyright holders may be the major fly in the ointment. Three or four of my late mother's books are still in copyright. I and my siblings inherited the rights (and I will soon be publishing two of these books) but it would be difficult and expensive to discover us. Multiply that by thousands of others in similar circumstances. Google could afford the money to identify most of us but it would probably not be worth the time and trouble to do so.

As far as setting aside funds to compensate those whose rights surface down the road, it's a sensible idea, but it would have to be administered in a way fair to both authors and Google. If a book published in 1990 sold only a handful of copies, the author or heirs shouldn't be rewarded as if Google had 'pirated' a best-seller.

As an avid reader, a writer and a small publisher, I look at copyrights from all angles. One of the issues I've always had with the law is 'piracy for gain'. I can see going after the guy who pirates a book and sells the pirated version. If Google is distributing a work in competition with the copyright owner, there are obvious concerns. If a book is out of print and Google is the only way it will be available, the copyright owner is in a much weaker position to demand payment. Rights not exercised are often considered forfeited.

"Rights not exercised are often considered forfeited"? That is not the case with US copyright law. Books are often reprinted, and can sell well, after being out of print for many years. Dover Publications has built a large and successful business on that strategy. BUT, Dover either reprints books that are out of print, or locates the copyright owners and pays for publications rights. So why should Google get rights free? And why should authors and their heirs, perhaps now enabled to reprint only by the availability of ebooks and print on demand, effectively lose the ability to profit from their books due to distribution from a much larger business--Google? Or free distribution through the Hathi Trust, the library consortium that has collected the books scanned by Google and which is now actively experimenting with declaring copyrighted books "orphan" and distributing them?

Also--"Google is the only way the book will be available" Highly unlikely, since the so-called orphan works are, historically, comparatively recent publications. They are available as print books in libraries--they were, after all,s canned from library collections. They are probably mostly available through interlibrary loan. They are probably mostly available on the used book market--online and offline.

Sorry, but not being a free, downloadable ebook does not mean a book is "unavailable."

I'm sorry, but US copyright law requires those who wish to reprint copyrighted works, as Google was doing, ask permission of, and often pay, the copyright holder. Print publishers have been doing this for a very long time. There is no reason Google, or anyone else, should be exempted just because they don't feel like tracking down copyright holders.

The public does not have a *right* to read books at the expense of the copyright holder.

I will add that many of the public-domain works Google and the Internet Archive have posted are now also available in print format from a host of publishers who sucked up the files. These print books are not exactly cheap. It is legal for them to do that with public-domain works, except for Google's licensing language saying it is not permitted, which none of those reprint publishers are paying attention to. However, it does predict that any so-called orphan files will be sucked up and used in much the same way.

Frankly, as an author and a publisher, I spend a great deal of time and money on my work and publish for profit. I am also the co-heir of some so-called orphan works. I have no sympathy for anyone who complains that they "ought to" have books free (or even cheap).

The copyright holder has control of the copyright till it expires. Neither Google nor any other entity has an exemption from that.

Copyright is so f-ed up it's not even funny. But I won't go into that right now (you're welcome).

Let me instead ask you, what if, after a certain REASONABLE period of time (let's say five years turns out to be reasonable) after which you have demonstrated your intent to sell (by, you know, selling your book), Google is allowed to scan and display your book and pays you a reasonable fee for doing so, that fee being based on the current market value of your book?

For the overwhelming majority of books, this would be a pittance, because the book stores aren't stocking them and the virtual bookstores aren't advertising them, but it WOULD BE more than they're making now, which is probably nothing. Chances are, this would drive up the value of the book at least a little, and thereby increase the amount Google pays you over time.

For a handful of books, the payment Google would have to make would probably exceed how much they'd be able to earn from it, and so they would choose not to scan it in, or they'd offer it at a significant premium. They'd basically be another distributor for you.

The current near-infinite copyright length serves ONLY to let the rich get richer. The rest of us, who can't get anyone to buy our books within a year of publishing, see zero benefit in infinite copyright length. Really, do you think you can sell the refrigerator art your parents drew? Because that's all the benefit YOU get from infinite copyright length.

Let's not fall into the fallacy which protects only the rich. Allowing Google to display our art can only INCREASE our value (after a certain reasonable time period), even if Google gives us nothing. It gets our art into people's hands who would otherwise balk at the hassle involved in paying even a penny. Our prior work becomes what the Founding Fathers said it's supposed to be: an advertisment for our future work.

Just think how hard it would have been for Democracy to spread across the world if the Declaration of Independence were copyrighted and other new governments had to pay us to model their government on ours.

You are not considering that (a) books can "take off," for the first or second time, long after first publication. For example, pilot Beryl Markham's memoir "West with the Night," which was revived decades after first publication due to the popularity of "Out of Africa" and became a bestseller--when Markham was old and in financial need. (Markham knew Karen Blixen and others in that social group.) (b) Books can languish, even in print, for long periods, before becoming very popular. Take, for example, "Lord of the Rings." (c) E-books and print-on-demand technology--the avenues Google was claiming--are becoming affordable to a huge number of self-publishers, and so are distribution avenues such as Amazon. Also, self-publishing is becoming increasingly respectable. (d) I fail to see how long copyright terms benefit only "the rich." I benefit from them by keeping my own books in print, some for 20 years now. But, I've invested several hundred thousand dollars in my business. I don't want to just "get the word out," and I don't want to just "benefit art." I want--need--to pay for my housing and groceries. (e) It would be almost impossible for me to compete with Google, if they pirated my work. I am a very small business, and Google is a very large one. I can't, for example, afford to personally sue Google. So copyright law is protecting me, the author and small business.

I am perfectly delighted that the Settlement seems to have failed as an opt-out option. And no, I don't feel that readers are "entitled" to books without paying for them--whether they live in the US or elsewhere. Look, we all need groceries and housing too, but no one is giving them to us free.

I will add that for my books, it often takes a year or two for them to "take off." This is especially true for the last few years--I am just now seeing sales pick up to their 2007 levels. A large publisher might have dumped my books within a year or two. But as a self-publisher, I keep them in print, I keep marketing, and sales eventually pick up. I don't have to declare them failed and use them as an "advertisement." I don't have to distribute freebies (except for a dozen or so print copies) and declare that an "advertisement." I don't have to let Google or anyone else pirate my work and call it an "advertisement."

And, I don't feel nearly as afraid that if I let a book go out of print for a year while I prepare an updated edition, that it will be seized on with a declaration that since I let it go out of print, the world should get it free. I'm not under any obligation to keep everything in print forever, and I don't see why I should be punished (by having my work stolen) for publishing books instead of having gone into some other profession or business.

As for the Founding Fathers, don't forget they also approved slavery. Times have changed. Authors live longer, and publishing technology has changed enormously.

Hi Frances! Thanks for helping me learn. I just have a moment right now.

I noticed you missed where I said Google would pay a value based on the book's current market value. And the part where I said that as your exposure increases, your market value would go up and they'd pay you more. And the part where I kind of implied that the value could conceivably reach levels so high they don't feel it's worth it and stop making it available.

Reasonable copyright lengths are good, as long as they're reasonable. We don't pay office workers anything extra for the reports they craft, even if they're used multiple times by multiple people. We don't even pay road construction workers for every time someone drives over a road they built. The arts are the only industry where one expenditure of effort pays off for life. Copyright was NOT intended to support lazy artists who only had to work once and then be set for life.

And lest we forget, those slaves were sold to us by their fellow countrymen, who chose to do that instead of slaughtering them. I don't have any slaves myself, but I don't pass value judgments on people who were only doing what the times required for survival, and which I have very little standard of comparison. Modern civilization is practically an oxymoron.

Wow, that's a new excuse for stealing intellectual property. Artists are lazy! Even more bizarre than, I'm poor so it's okay for me to steal, or, but the thieves who are selling me this stolen property make it look so much prettier than the owners did.

I don't know of any artist who only worked once, unless they died immediately afterwards. Look at all the musicians still performing long after they've made more millions than a bank can reasonably hold. How many times have you run across a book that's incomplete because the author died while still writing it? Lazy, forsooth.

Google can pose as the creators of a massive digital library for the good of humanity if they wish, but the bottom line is, if they can sell copyrighted works without paying the copyright owners, they can make more money. Conversely, an opt-in system is likely to cost them money, at which point it appears their benevolence for humanity goes in the trash. We're not going to play if we have to pay!

Also on this page, the British govt is possibly about to open up all photographs on the web to a massive grab by anyone who wants to use them and 'can't find' the rights owner. Gah.

If the concern is availability, why is it better to have Google sell the book than for the author or publisher to sell it? If you'd read the Settlement, you'd know that it set up a structure for Google to *charge* readers for the books.

Also, believe me, the author and publisher have far, far better knowledge of how well a book is selling, how much of the expenses have been recouped, what the book market is in general, and how to market this particular book:

Than J. Random Reader does.

Google already has an opt-IN structure for publishers and authors to sell books through Google. (And so does Amazon, and Barnes & Noble, and many other booksellers.) Any legitimate copyright holder who decides that is good business can already sign up with Google. And any legitimate copyright holder who decides that giving their own books away will help to market them, can do that. And any legitimate copyright holder who wants to put their own books permanently into the public domain can already do that.

If any of this really makes good marketing sense FOR COPYRIGHT HOLDERS, we don't need Google to do any of it WITHOUT OUR CONSENT. And no, I don't care if Google would pay me the tiny amounts dictated by the Settlement. I already have my own, better, deals in place.

As for "one expenditure of effort": Writers do not get paid salaries for writing (unless they are working in-house for a business, in which case the business usually owns the copyrights). They invest large amount of labor and get paid gradually, over time. Likewise, publishers invest large amounts of money in editors, indexers, illustrators, book designers, overhead, and marketing, and THEY get paid gradually over time. These days, writers also invest lots of time in marketing. Then, for nonfiction, there's updating the book to new editions when it is no longer current.

This is NOT a case where the publisher immediately pays writers full value for the work, and then the writers just sit back for years while checks keep rolling in. I wish!

Writing and publishing are investments in the hope of garnering future returns. That hope is not always realized, either.

Francis, I wholeheartedly agree. In fact, I consider 'life of the author + 70 years' to be theft. If I write something it should be mine. Forever. And I should be able to leave it to whomever I wish upon my demise, including my great-great-grandchildren if I have any alive at that time. My efforts should benefit my family for generations to come, the same way my home, if it's paid for, will and my bank account, if there's anything in it. Anything I earn I can leave to my church or my favorite charities or my descendants - and if I wrote a book, anything it earns is money I earned. Period.

In response to: I agree-provided it's extended to all other kinds of property. Why should distant heirs have the family home, or the stocks and shares, or even the family photo album?

There a difference between tangible property and words (and pictures, songs, etc.).

Tangible property can only be USED by one (or a limited) number of people at a time -- so it's natural that there should be rules as to who that person is.

But words (and pictures, songs, etc.) can be COPIED. It's possible for BILLIONS of people to USE it at the same time.

Furthermore, words (and pictures, songs, etc.) are part of CULTURE -- which is shared and build upon.

Look at all the books and songs and films that have been based on public domain works (e.g., WICKED or WUTHERING HEIGHTS WITH ZOMBIES -- was that the title?)

Authors are oddly contradictory when it comes to copyright. Most authors are liberal when it comes to economics in general, but become Ayn Rand type, property rights extremists when it comes to copyright.

Yet I wonder how many authors who are extremist on copyrights themselves "borrow" public domain characters like Dracula, Frankenstein, Shakespeare's characters, etc.?

Authors take from past culture -- they should have no problem with contributing their own works into the public domain after they die.

Copyright is a legal issue. It is not what you personally decide is moral.

The US copyright term is what it is, and after that works go into the public domain. It's illegal to violate the copyrights of copyrighted works, and it's legal to reprint or use characters from works that have legally fallen into the public domain (not ones you personally declare are "orphans").

No author has to justify their fully legal practices on this forum, or anywhere else.

A-freakin'-MEN, Anon1! (How about a name, huh?) Kids happen to like singing Happy Birthday. They like doodling Mickey Mouse. They like doing all kinds of horribly illegal things like this. People are so freakin' uneducated about where all this stuff comes from, and if we started employing eternal copyrights, the world surely WOULD be going to hell in a handbasket.

Also, Anon2 (make up a name?) said,"In fact, I consider 'life of the author + 70 years' to be theft."

Totally agree. Excessive protections like this do nothing but let fat-cat crooks keep robbing us. Total genius on their part to convince the "me" generation that black is white.